TABLE OF CONTENTS I. INTRODUCTION 1224 II. THE RULE/STANDARD AND OBJECTIVE/SUBJECTIVE DYADS IN TARGETING LAW 1230 A. An Uncertain Targeting Theology up to and at the Diplomatic Conference That Adopted Additional Protocol I 1233 B. The Turn to International Criminal Law 1240 C. Contemporary Trends 1244 D. Rules, Objective Tests, and the Desire for Clarity 1249 1. Expectations of the International Community 1249 2. Uncertainty in the Law 1255 III. CASE STUDY: INDISCRIMINATE ATTACKS 1257 A. Indiscriminate Attacks in the Modern IHL 1257 B. Indiscriminate Attacks and Contemporary Armed Conflict 1260 C. The History of the Prohibition of Indiscriminate Attacks 1264 1. Indiscriminate Attacks Before and During the Negotiation of Additional Protocol I 1264 2. Indiscriminate Attacks at the ICTY.... 1266 IV. WAY FORWARD 1269 A. A New Approach to Indiscriminate Attacks 1269 B. Addressing Counter-Arguments 1277 V. CONCLUSION 1279 I. INTRODUCTION
The word "indiscriminate"--not "proportionality" (1)--is the new touchstone in the public discourse regarding the conduct of hostilities. In Syria, for instance, a number of states have called for an end to "indiscriminate bombing." (2) The United Nations Secretariat has likewise frequently stated that indiscriminate attacks are ongoing in Syria. (3) And on October 8, 2016, the Russian Federation vetoed a Security Council resolution that would have expressed alarm at "indiscriminate aerial bombings" in Aleppo. (4) But it is not just Syria: during a January 2016 open debate in the UN Security Council, of the seventy-one states that spoke, seventeen referred to indiscriminate attacks. (5) Likewise, the UN Secretary General recently asserted that "in war zones all over the world, parties to conflict are... routinely killing civilians in... indiscriminate attacks, and showing contempt for human life." (6)
Just as the phrase's usage has increased, so too has the imprecision of that use. In general, it is now being used to mean one of two things: attacks with particular weapons (sometimes under a certain category of circumstances) that are seen as by their nature particularly problematic; or attacks resulting in numerous civilian casualties. By these lights, using "dumb bombs," or mortars in a civilian area, is indiscriminate, and so too is an attack that results in civilian casualties without a readily discernible military objective. The black letter prohibition of indiscriminate attacks under international humanitarian law (IHL) (7) is narrower. It comprises essentially three possibilities: (8) (1) use of a specific means or method of combat that is inherently indiscriminate either (a) because it cannot be aimed (for instance, balloon-borne bombs) or (b) because its effects cannot be controlled (for instance, biological weapons or poisoning foodstuffs); or (2) an attack that was not aimed (for instance, an artillery shell blindly fired). (9)
The black letter view, however, does not permit many conclusive judgments, and certainly not many swift ones. (10) So, for instance, most weapons and methods of attack are not inherently indiscriminate, because one could imagine a set of circumstances in which they could be used lawfully (for instance, against a military barracks in a desert with no civilians within miles). (11) Moreover, because the effects of a particular means or method of combat are often context-dependent, it is hard to say that one is necessarily unlawful. For instance, while fire can rage out of control, incendiary weapons can also be used in a way in which their effects would be limited. Even "dumb" landmines could have lawfully limited effects if, for instance, they were marked and used as a barrier against an approaching enemy. (12) Likewise, with some exceptions, it can be very difficult conclusively to determine where and what an attacker was aiming at (at least without access to often-classified internal targeting data), making it difficult to conclude that an attack was entirely unaimed. (13)
This has become unsatisfying to some--and an alternative account has arisen--because it is an awkward fit with the contemporary desire for moral and legal clarity in judging attacks in real time. How, the argument goes, can it not be said that the devastation in Aleppo and other such places is the result of indiscriminate attacks, especially with the wealth of information available about the effects of attacks almost immediately after they have taken place?
This difference between contemporary discourse and traditional legal understanding is not unique to the prohibition of indiscriminate attacks, although the term "indiscriminate" is particularly susceptible to such dichotomous approaches. (14) Indeed, several years ago, William Fenrick trenchantly predicted, "We may see one version of the law developed by military participants, with an in-depth understanding of relevant facts and relevant technology (i.e., hothouse law) and another version developed by external reviewers denied access to such information," (15) and his forecast is beginning to come true. (16)
This Article seeks to explicate this phenomenon. It offers an account of the ways in which IHL--and specifically the core targeting provisions reflected in Additional Protocol I to the Geneva Conventions (17)--has historically balanced two different legal dyads: rules versus standards and objective versus subjective tests. The Article further argues that the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) began to shift that balance toward a "standard-like" approach to IHL. It also contends, however, that there is now another shift, in favor of an objective, "rule-like" approach to IHL--or, at least, that the public is pushing in that direction. This Article then examines the prohibition of indiscriminate attacks (18) more closely and argues that contemporary focus on the term "indiscriminate" reflects this desire for objective rules.
The Article then pivots to offer specific policy prescriptions with respect to how to adjust the approach to this specific prohibition in response to the broader shift in sentiment. The aim is to contribute both to a salient contemporary debate about the conduct of hostilities--relevant around the world from South Sudan to Nigeria to Yemen (19)--and to a broader discussion of the direction in which IHL may ultimately go.
The Article argues that if policymakers are not better able to respond to the clarion call for clearer IHL rules--ones that can be applied without access to the full scope of information that only states have--there is substantial risk that the goalposts will move in even more profound ways. For instance, there could be a shift toward additional norms taking the form of prohibitions of classes of weapons, some of which may have wholly appropriate uses, on the ground that they are inherently indiscriminate. (20) Likewise, an approach--deeply alarming to many scholars and practitioners--that looks to the effects of attack to judge them could begin to hold (broader) sway in the mind of the public. (21)
This Article proceeds in five Parts. Part II explains the differences between rules and standards and between objective and subjective tests, and it argues that--despite the lack of attention to this issue in the scholarship (22)--these hoary legal dyads were well reflected in the development of targeting law. This Part then shows that, while the advent of the international criminal tribunals (in particular the ICTY) pushed IHL targeting norms further in the direction of a standard-like approach, there is now a substantial movement favoring a rule-like, objective system, and it offers potential explanations for why there is such a movement. Part III specifically examines the prohibition of indiscriminate attacks as a case study. Part IV tentatively suggests a way forward with respect to that prohibition: namely, to evaluate at least certain categories of attacks ex ante with regard to their risk of being unlawful, an approach drawing on the concept of objective recklessness. This Part both asserts that this may be a constructive way to address the concerns that have been driving the broader conversation and defends this suggestion against potential questions. Part V offers a brief, broader conclusion.
THE RULE/STANDARD AND OBJECTIVE/SUBJECTIVE DYADS IN TARGETING LAW
In general, as Duncan Kennedy has suggested, "rules" are those norms with greater formal realizability, i.e., those that require a decision maker "to respond to the presence together of each of a list of easily distinguishable factual aspects of a situation by intervening in a determinate way." (23) By contrast, a "standard refers directly to one of the substantive objectives of the legal order. Some examples are good faith, due care, fairness, unconscionability, unjust enrichment, and reasonableness." (24) Rules also tend to be elaborated ex ante whereas standards can be applied to facts as--or, more generally, after--they arise. (25) Like Amichai Cohen, (26) this Article uses the terms "rule-like" and "standard-like," in recognition of the fact that these legal forms exist along a continuum.
Gabriella Blum has asserted that black letter IHL is a mix of rules, such as the prohibition of particular weapons, and standards, such as the prohibition of disproportionate attacks. (27) This is undoubtedly true. A useful comparison from the earliest days of IHL might be between the 1899 Hague Declaration on Launching Projectiles and Explosives from Balloons, (28) which prohibited a particular kind of situational bombardment, and the Martens clause. (29)
But Blum's account is too thin. Certain IHL targeting "rules" also contain standard-like elements. Thus, for instance, consider the prohibition of attacks against civilian objects. So far, so good; it does indeed sound rule-like. But a "civilian object" is defined in contradistinction to a military objective, which in turn...